As most folks know, possession of a controlled substance – methamphetamine, cocaine, heroin or a synthetic like oxycontin or marijuana without a prescription, for example – is illegal. But what if a friend, relative or acquaintance leaves narcotics in someone else’s car or room, and they somehow find their way into the hands of law enforcement? Could the unsuspecting non-owner face drug charges? Like it or not, it is possible that such a scenario could result in the person being charged with a crime.
How is this possible? It is a concept referred to as “constructive possession.” The law for applying constructive possession to a drug case varies from state to state. In Pennsylvania, a constructive possession charge relies on a “totality of the circumstances” test. To prove constructive possession in the Keystone State – as opposed to actual possession – the Commonwealth must demonstrate that the defendant has the power to control (“dominion over”) the contraband in question and the intent to exercise such control.
As noted above, intent to control the contraband in question can be inferred from the circumstances in which the contraband and the defendant(s) were encountered. This includes circumstantial evidence, such as easy access to the contraband. In some cases, a defendant’s proximity to the contraband combined with access may be enough to prove constructive possession. For example, if drugs were found in the drawer of a dresser inside a defendant’s room, it could be sufficient.
On the other hand, if multiple people have equal access to contraband – such as a table in the common area of a home – the Commonwealth may need to show more. At the same time, however, multiple defendants can be charged with joint constructive possession if there is no evidence that clearly connects one person to the contraband more than another. Because constructive possession is a murky area of criminal law in Pennsylvania, the advice of an experienced criminal defense lawyer should always be sought.